DLP Insights

Part time – Overtime even without agreements (Il Sole 24 ore, 16 june 2015, page 45)

Catégories: DLP Insights, Publications

The main introductions regarding part-time work concern the topic of working time changes, which has always been a relevant subject (and with recurring interventions) for the legislator.
Despite the parties having an obligation to specify the duration of working time and timeframe of the hours in relation to the day, week, month and year, article 46 of Italian Legislative Decree 276 of 2003 had introduced the possibility for the parties to change the timeframe of the job using the so called flexible clauses and/or increasing the duration during the period of employment.
The latter possibility meant different things based on the type of contract: overtime in horizontal part-time, elastic clauses in vertical and mixed part-time. The performance of overtime, as well as inserting elastic clauses in the contract required the worker’s consent.
In this regard, the new implementing decree of the Jobs Act has eliminated the requirement for national collective contracts to have specific reasons for legitimately using these clauses, thus expanding their possibility of use. On the other hand, it sets down a series of requirements that are applicable if the collective bargaining does not contain a specific provision for overtime and elastic and flexible clauses. Specifically, the decree includes a maximum number of overtime hours equal to 25% of the agreed weekly working hours and the right of the worker to a 15% increase in pay based on the de facto overall hourly wage.
In terms of the elastic clauses (with which now, due to the abolition to refer to “flexible clauses”, seems to mean both a change in the job timeframe and increase in the duration of working hours), there is the possibility for the parties to change the job timeframe or increase  the duration of working hours, as long as this is done in writing and before the certification commissions required by article 76 of Decree 276/2003 and as long as the collective contract applied to the employment does not contain a specific provision.
In any case, the maximum amount of the increase in working hours cannot exceed the threshold of 25% of the normal part-time annual working hours, and the changes in the working hours include the worker’s right to a 15% increase in pay based on the hourly wage.
The provision introduced with article 1, paragraph 20, of Law 92/2012 is confirmed whereby with the repeal of the so-called worker’s right to change his mind, the collective contracts may establish conditions and procedures which allow the worker to ask for the elimination (or at least, the modification) of the elastic clauses. With the aim of protecting the worker’s “essential security” the possibility was also confirmed for an employee in certain conditions to revoke a previously granted consent to add elastic clause to the contract.
The first series of these conditions refers to particular health reasons, such as cancer or chronic-degenerative diseases, of the worker or his immediate family members, plus assistance for a cohabiting person with complete and permanent inability to work, a cohabiting disabled child, as well as care of a cohabiting child not over age 13; the second, instead, is referred to article 10 of the workers’ statute which protects the job of student workers, including university students. Much more generic is the wording of the law which allows workers to refuse to work overtime in the presence of “proven work, health, family or professional training needs”.
Lastly, the provision whereby an employee may ask, only once, to substitute transformation of a full-time job for part-time in lieu of parental leave (or within the limits of the leave still to be taken) is completely new. In this case the hourly reduction cannot exceed 50 percent and the employer must make this transformation within fifteen days from the request.   

Autres insights